Column

The Deschênes Vision

Soquij and Slaw continue the vision of Jules Deschênes

Legal Separatism in Canada

In 1979 I was introduced by Simon Chester to Jules Deschênes, Chief Justice of the Superior Court of Quebec, who wished to discuss the role that English language legal publishers such as Carswell could play in addressing what he called “legal separatism in Canada”.

His thesis was that “Quebec has shown the willingness and the ability to contribute to the building of […] a national scheme of federal law, but the legal community of the rest of Canada has, by and large, closed itself off and away by simply ignoring the Quebec contribution.” He further stated that “There now exists an actual separation in legal Canada, but it has been worked upon Quebec from without, not by Quebec from within.” He noted that the academic legal work that had been done in Quebec had gone unnoticed in the rest of Canada in the fields of commercial law, criminal law and administrative law in particular and that the absence of the citation of Quebec cases in the decision of courts in the rest of Canada was the proof of his thesis.

More to the point, he believed that the English language legal publishers were part of the problem. It was the legal publishers who were failing to draw to the attention of the rest of Canada relevant developments that were raised in Quebec decisions.

Quebec Editors for Carswell Topical Law Reports

At the time, Carswell was launching its series of topical law reports on virtually every aspect of law and his thought was that Carswell could use its topical law reports as a vehicle to make a difference. In response to his criticism Carswell decided to report the leading cases decided in Quebec in all of its series of topical law reports. To achieve this goal, Quebec editors were appointed for each series to select and summarize noteworthy cases for publication. The decisions were published in the language in which they were issued, with case summaries in English or in French, or in both languages. This was done and the practice of publishing the leading Quebec cases was continued over many years.

With the development and widespread use of comprehensive caselaw databases from Canlii, Soquij, Thomson Reuters and Lexis Nexis, and the flood of awareness services, traditional law reports in print ceased to be the vehicle for current awareness. The print law reports nominally continue to exist and are theoretically continued in databases for marketing reasons, but the regular circulation of the “paper part” to members of the legal profession has been abandoned. While access to the decisions themselves has been expanded and are now readily available from several sources including Canlii, Soquij, Thomson Reuters and Lexis Nexis, missing is the attention that the circulation of the law report parts brought to the cases selected for publication.

Soquij and Slaw offer a better service

As “Quebec editors” for print law reports became a thing of the past, Soquij and Slaw, took their place. Consciously or otherwise, the two organizations came together in 2013 to continue the vision of Justice Deschênes by publishing on a weekly basis a summary of a decision handed down by a Québec court that Soquij editors consider to be of interest to legal profession throughout Canada. Soquij editors have become the “Quebec Editors” of today and Slaw has become their publisher.

Awareness and use

Deschênes recognized that the publishing of relevant cases was distinct from their use by researchers and legal practitioners, but he saw it as a necessary prerequisite. It is a fact that less progress has been has been made of their use than what he expected. Language and attitudes towards language, continue to be a hurdle for many members of the judiciary and of the legal profession. Ultimately the resolution of this issue can only come when persons who play a leading role in the legal profession accept the need to be able to read and understand both French and English.

Past practices in this regard did not help. Bilingual positions in the courts and in government have regularly been temporarily reclassified as unilingual in order to appoint a connected unqualified candidate, and then reclassified as bilingual with a frequently unfulfilled commitment by the appointee to become fluent in French. The scandals of past appointments of unilingual judges to the Supreme Court are only the most visible examples of this practice. If a candidate aspires to an appointment to a bilingual position, it goes without saying that the candidate should have the foresight to prepare for the job.

While the linguistically integrated legal system envisaged by Justice Deschênes is far from being achieved, the Soquij/Slaw initiative shows that the concept has not been abandoned. His vision of a national scheme of law originating from all of the provinces of Canada continues to be a goal worth pursuing.

SOQUIJ (Société québécoise d’information juridique) publishes decisions from the judicial and administrative tribunals of Québec. SOQUIJ is attached to the Québec Department of Justice and collects, analyzes, enriches, and disseminates legal information in Québec.

Comments

  1. This is important work. Sadly, the Québec government is steering in the opposite direction: its Bill 96 proposes abolishing the right currently included in the Charter of the French Language for any party to obtain an English or French translation of a judgment, prepared at the expense of the Ministry of Justice. The amendments would replace that with the obligation to attach a French translation to any final judgment (since judges can provide their reasons in either language) and provide only a right to a French translation of interlocutory judgments.

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